February 17, 2010
Hear the Uighurs; The critical Guantanamo case the Supreme Court should not duck—A Commentary by Rebecca Crootof ’11 and Oona A. Hathaway ’97
The following commentary was published on Slate on February 17, 2010.
Hear the Uighurs; The critical Guantanamo case the Supreme Court should not duck.
By Rebecca Crootof ’11 and Oona A. Hathaway ’97
Does a district court have the power to order the release of a person who is unlawfully held by the U.S. government? This is the central issue of Kiyemba v. Obama, the case before the Supreme Court involving seven Chinese ethnic-minority Uighurs being held on Guantanamo. The government is now seeking to have the case "dismissed as improvidently granted" after recent news that two of the Uighurs received offers of resettlement in Switzerland—including the only one of the seven who previously had not had a country willing to take him. But if the court were to do as the government suggests, it would fail to resolve important concerns about the courts' power to order the release of people unlawfully held by the government. Worse, it would also leave bad law standing.
The Uighurs' story is by now depressingly familiar. Having fled first to Afghanistan to avoid persecution in China and then to Pakistan to avoid U.S. bombing in the wake of 9/11, the Uighurs were turned over to the U.S. military by local inhabitants in exchange for $5,000 per person. The United States suspected them of being enemy combatants (wrongly, our government now admits) and sent them to Guantanamo Bay, where they have been imprisoned for the past seven years.
After the Uighurs' detention was challenged in court, the U.S. government determined that there was no legal reason to continue to hold them. But repatriation to China was not an option. The United States concluded that the Uighurs might well face persecution and perhaps even torture as suspected members of the East Turkistan Islamic Movement, which China regards as a terrorist organization.
Judge Ricardo M. Urbina of the D.C. district court ordered the Uighurs released, into the United States if necessary, after the government admitted it had no basis for holding them and had no other place to send them. The U.S. Court of Appeals for the D.C. Circuit reversed the district court and held that the government had the authority to detain the Uighurs indefinitely. This ruling both ignored and undercut the Supreme Court's 2008 decision in Boumediene v. Bush, which held that Guantanamo detainees have the same right to bring habeas petitions—to challenge their detention in federal court—as other noncitizens. When the Uighurs sought review of the D.C. Circuit's ruling, the Supreme Court agreed to hear their case.
Because of Switzerland's new offer, the government is now seeking to have the case dismissed as improvidently granted. This action is appropriate when, as the Supreme Court put it in 1959, all relevant facts about a case were not "fully apprehended at the time certiorari was granted"—in other words, if the court misunderstood the facts of the case when it agreed to grant certiorari. In a letter filed on Feb. 5, Solicitor General Elena Kagan stated that the court "might wish" to dismiss the case as improvidently granted because, along with the previous offer from Palau to take five of the Uighurs, the Swiss offer to resettle the remaining two eliminated "the factual premise of the question presented in this case—i.e., that petitioners have no possibility of leaving Guantanamo Bay except by being brought to and released in the United States."
Whatever one may think of the merits of the case, dismissal on these grounds is clearly not the right outcome. It would represent an exceedingly transparent effort by the court to avoid conflict with the president and to dodge wrestling with the difficult questions presented by this case. The relevant facts were "fully apprehended" at the time the court took the case. The government is not even attempting to make the argument that they were not; instead, it is arguing that the facts have changed.
If the court concludes that Switzerland's offer changes the circumstances so much that a judgment is no longer necessary, then the appropriate approach would be to find the case moot, as Linda Greenhouse recently pointed out in the New York Times. The court would then vacate the D.C. Circuit opinion and send the case back to that court with instructions to dismiss. This would have the benefit of eliminating the wrongheaded D.C. Circuit ruling. Dismissing the case as improvidently granted, by contrast, would leave this decision on the books, where it would adversely affect other Guantanamo detainees in the future.
Dismissing the case as moot is the lesser of two evils, but it is still an evil. It would represent a failure on the part of the court to weigh in on a live dispute in which its judgment is not only necessary but desperately needed. Switzerland's offer does not change the fact that five Uighurs will remain on Guantanamo for the foreseeable future because they have rejected offers to relocate temporarily to Palau as invitations to indeterminate exile with no promise of citizenship. Even if all the Uighurs are successfully resettled, the situation is, as the court usually puts it, "capable of repetition yet evading review." For example, the Yemenis held on Guantanamo face a similar conundrum—many have been cleared for release but cannot be returned to Yemen because of the political situation in that country. More generally, if the Uighurs' case is dismissed as moot, the president may continue to hold detainees for years and avoid review when the legal basis of the detention is challenged.
There is another way. The court should decide the merits of the case it agreed to hear. Doing so will reaffirm that the judiciary has the power to determine whether a detention is lawful. And it will allow the court to consider whether that power includes the authority to order release.
Rebecca Crootof is a student at Yale Law School, where Oona A. Hathaway is the Gerard C. and Bernice Latrobe Smith professor of international law.